D.C. Bar Goes After Whistleblower Who Exposed Warrantless Wiretapping

When the Justice Department ended its investigation into Thomas Tamm in 2011, the Justice Department whistleblower who revealed warrantless wiretapping said it was a relief that a “long ordeal” was now over. But it turns out the “ordeal” has entered a new chapter. He now faces ethics violations for blowing the whistle on illegal surveillance.

The District of Columbia Bar, a body with the power to discipline lawyers who violate ethical standards and rules of professional conduct, initiated disciplinary proceedings for Tamm for revealing “secrets” or “confidences” of his “client” to New York Times reporter Eric Lichtblau.

It charged him with failing to refer information in his possession that “persons within the Department of Justice were violating their legal obligations” to the Attorney General.

The alleged ethics violations specifically stem from Tamm’s work in the Office of Intelligence Policy and Review in the Justice Department. It notes one of his duties was to apply to the Foreign Intelligence Surveillance Court for “warrants to conduct electronic surveillance in national security matters.” This information was “secret,” and Tamm was required to have a “special security clearance” to make applications.

When Tamm learned some of the surveillance applications were given special treatment, signed only by the Attorney General, and made only to the chief judge of the Foreign Intelligence Surveillance Court, he became concerned. He learned this was part of something referred to as “The Program.” He asked about “The Program” and was informed it was “probably illegal.”

Even though Tamm “believed that an agency of the Department of Justice was involved in illegal conduct, he did not refer the matter to a higher authority within the department,” the complaint alleges.

Instead, the complaint says Tamm contacted a newspaper reporter in 2004 and told him he knew conduct he believed to be illegal was taking place. Tamm disclosed secret information that should have remained confidential.

The complaint was filed on December 29, 2015, and the District of Columbia Court of Appeals has the “ultimate authority for disciplining members” of the D.C. Bar. Tamm could be disbarred, suspended, censured, reprimanded, or face other sanctions. He has been a member of the D.C. Bar since 1978, and after nearly four decades as an attorney, his livelihood is under direct attack.

Through the act of bringing these ethics violations against Tamm, the D.C. Bar is sending a message to all of its members in government that it is far more ethical to keep evidence of illegal government activities confidential than it is to expose it to the public so officials may be held accountable for their misconduct.

The “client” in this case is the government employees involved in drafting applications for warrantless surveillance, who Tamm represented. Do disciplinary counsel with the D.C. Bar believe he should face punishment because he implicated those employees when he revealed corruption?

The D.C. Bar would have everyone believe that Tamm did not go through proper channels because he did not formally complain to any higher authority in the Justice Department. Yet, Tamm recognized those at the top were implicated in the criminal activity that was ongoing. He also went to someone working in Congress with his concerns, which is completely legitimate.

“I decided to go reach out to somebody who I knew on the Hill I had worked on a death penalty case with,” Tamm told PBS FRONTLINE. “I knew she would have a top-secret security clearance.”

Tamm asked her to talk to someone on an intelligence committee and find out if Congress knew what was being done. She did not respond to him for months and later she said she could not tell him anything. She warned him that “whistleblowers frequently don’t end up very well.” This led Tamm to conclude “The Program” was not being vetted by layers of lawyers. Only a small circle of people knew about this, and he needed to go to the press.

To further demonstrate how obscene it is that the D.C. Bar would launch disciplinary proceedings against Tamm, this is how Tamm defended the ethical choice he made to protect the United States Constitution by revealing details of “The Program” to a reporter.

Well, the oath that I took was to preserve and protect the Constitution of the United States against enemies foreign and domestic. And, you know, it’s my belief that we are a stronger country because of our Constitution and because of our democratic institutions, like the courts and the Congress, as well as the presidency. And I honestly thought I had an ethical obligation to talk to somebody about what I thought was an illegal abuse of executive authority. In fact, when I was working at the Department of Justice in OIPR, my boss said that if you don’t want to sign one of these affidavits, if you’re afraid to put your name on these affidavits, then he would sign his name. And that just sent up a red flag. I said I would look at these documents and say, what is in here that might be suspicious? And there wasn’t anything. And so, I really thought it was my duty.

Tamm heard chatter about how a sitting attorney general might be indicted. “It was pretty clear to me, at least, that I didn’t want to keep participating in whatever was going on,” Tamm concluded.

When the Justice Department abandoned its investigation into him in 2011, Tamm was certain the investigation into him collapsed because he had revealed something against the law. He also had not provided any documents to a journalist. He had revealed no sources. He had broken no law.

On top of that, when will D.C. Bar disciplinary counsel bring proceedings against lawyers in the Justice Department who engaged in illegal actions Tamm helped to expose? Or are they entitled to retroactive immunity for the felonious acts they were involved in committing?

It is astounding to think the D.C. Bar would be more overzealous than President Barack Obama’s administration in its pursuit of Tamm. Obama has led a government that has been more aggressive against whistleblowers and government officials accused of unauthorized disclosures than any previous president in U.S. history. Yet, it is a body that is supposed to support attorneys, which has set its sights on a whistleblower who dared to defend the ethics of the Constitution, and may end up making a quite positive contribution to the war on whistleblowers in this country.